36 A.D. 401 | N.Y. App. Div. | 1899
The indictment accuses the defendant of the crime of “ conniving at the auditing and allowance of a fraudulent claim against the City of Brooklyn, with, intent to defraud,” It charges that the crime was committed on December 22, 1897, and at other times; that John R. Sutton was at the time auditor of the city and authorized to audit and allow for payment bills presented against the city ; that the defendant then was a public officer, viz., deputy commissioner of city .works; that a part of his duty was to take part in auditing- and allowing claims and' demands upon the city ; that on December 22, 1897, with intent then and there to cheat and defraud the city, the defendant did “ knowingly, willfully and feloniously consent to and connive at the auditing and allowance, of a certain claim, bill and demand against the said corporation,- the city of
A copy of the bill is set out in the indictment and reads as follows:
“ General Fund.
Sl The City of Brooklyn,
“ To Henry E. Finkle, ■
“ Residence,' 407 Hamilton Ave., Dr.
“ 1897. For furnishing and distributing earth filling Dec. 16, on Neptune avenue, between West 12tli and West 20th streets, over the water main, as per proposal, 1,528 cubic yards at $1.30 cu. yd. Total dollars, $1,986.40.”
Attached to the bill is an affidavit of Finkle, dated December 16, 1897, that the services and articles had been performed and furnished, and that the prices charged were reasonable and just..
The indictment further charges that the bill had been, or was about to be presented to the auditor, as the defendant knew; that it was false and fraudulent in setting forth that the city was, on December sixteenth, indebted to Finkle in such sum for such services and materials, whereas said services and materials had not been ' m rendered and furnished, and the city was not so indebted, as the defendant well knew; that said bill was for work pretended to have been done under a contract not limited in amount to $2,000, made by Finkle with the commissioner of city works, in behalf of the city, without the written consent of the mayor and without advertisement for proposals, as' required by law, which contract was not reduced to writing nor executed by the mayor or commissioner, nor attested by the city clerk; that it was not certified by the comptroller that a fund to meet the contract was provided; and that payments had .already been made on such contract, amounting to $19,726.20, all of which facts the defendant knew; and that he also knew that by reason thereof the city was not indebted to Finkle in any sum whatever.
Upon this indictment the defendant was brought to trial at a ■criminal term of the Supreme Court; the jury rendered a verdict of guilty of felony as charged in the indictment, and a judgment of
■The-indictment ivas found under section 165 of the Penal Code, which provides as follows :
“False auditing amd paying claims.— A public officer, or a person holding or discharging the duties of any office or place of trust under the State, or in any county, town,, city or village,, a part of whose duties it is to audit, allow or pay, or take part in auditing, allowing or paying, claims or demands upon the State or such county, . town, city or village, who knowingly audits, allows or pays, or directly or .indirectly consents to, or in any way connives at, the auditing, allowance- or payment of any claim or demand against the State or such county, town, city or village, which is false or fraudulent, or contains charges, items or claims which are false or fraudulent, is guilty of felony, punishable by imprisonment for a term not exceeding five years, or by a fine not exceeding. five thousand dollars, or by both.”
During the years 1896 and 1897 John E. Sutton was auditor of the city of Brooklyn, Theodore B- Willis, commissioner, and the defendant deputy commissioner of city works. The charter of the city of Brooklyn (Chap. 583, Laws of 1888), section 2 of. title 3, conferred upon the mayor the power to appoint certain heads of departments, and among them the commissioner of city works. The commissioner had the power to appoint a deputy, who “ shall, during the absence or inability of the head of tlfe department by whom he was appointed, have- power to perform all the ordinary duties of such head of department, except the power to make appointments, subject, however, to such restrictions or regulations as may be provided by the head of the department so appointing him.” There was evidence tending to show that the defendant was charged by the commissioner with the general duty of examining and approving or rejecting bills and claims on matters, arising in tile department, whether the commissioner was absent or otherwise unable to attend to -them. And it appeared- by the testimony of the defendant that nearly all bills were examined and passed upon himself.
“Section 1. * * * l"t shall be his (the auditor’s) duty to examine all bills presented against the city for payment. No claim against the city, including claims for local improvements, shall be paid unless he shall certify that the services have been rendered or the materials furnished for which such bills may be presented, and that the charges are just and reasonable, or according to contract.
Ҥ 2. All moneys drawn from the treasury shall be upon vouchers for the expenditure thereof, examined and allowed by the auditor, and also approved by the comptroller, in whose office all such vouchers' shall be filed.
“ § 3. No bill or claim shall be audited unless the same be made out in items, certified by' the head of the department or officer having cognizance of the subject of such claim.
“ § 4. He shall also have the right to require from the different officers all the information which they possess, and to inspect any book, contract, resolution or other paper or document in thei respective departments or offices, and it is hereby made the duty o.; all such departments and officers to furnish and permit the same when so required by him.”
Title 4, section 1, which relates to the department of finance, provides that “ no expenditures, debts or disbursements of the several departments or other officers shall be paid, except upon vouchers properly certified and audited, as provided by this act.”
Title 3, section 11, subdivision 2, provides that the mayor “shall., jointly with the comptroller, sign all warrants, bonds and other obligations of the corporation. But he shall not sign any warrant or other obligation unless a proper voucher therefor shall have been first examined and certified to by him.”
Title 18, section 3, provides that “no contract or agreement for any purpose, involving the payment of any money, shall be valid and binding against said city unless the comptroller' shall certify or indorse on such contract or agreement that the means required to make the payments under such contract are provided and applicable thereto. "" * * ”
Title 18, section 1, as amended by chapter 329 of the Laws of 1895, provides as follows: “ All contracts relating to the construe
There was evidence tending to show that by the ordinary course .of business, claims arising in the department of city works were first certified hy the head of the bureau having charge of the particular work, and passed to the commissioner of city works or his deputy, and when approved by him were forwarded to the auditor, who approved and forwarded them to the comptroller, who in turn sent them to the mayor, with a warrant of payment for the latter’s signature. ■ .
Some years prior to 1896, the city had constructed .a water main and a sewer in Neptune avenue. The main was twelve inches in diameter and had been laid on the surface of the earth along the line of the avenue, which was then laid out but not graded. The sewer was partly above and partly below ground and parallel with and about sixteen feet distant from the main. Originally, both main and sewer had been more or less covered with earth, showing two parallel ridges.
In November, 1896, the defendant, as deputy commissioner of city works, executed a contract in writing with Daniel Doody, as contractor, by which the latter agreed to cover the exposed portions of the twelve-inch water main of the city, between West Twelfth and Twentieth streets, a total length of 1,635 feet, said in the contract to require approximately 1,500 cubic yards of earth, the price to be $1.33 per cubic yard, and the whole amount to be expended under the contract not to exceed $2,000. The bill rendered under this contract was for 1,270'cubic yards and amounted to.$1,689.10; it was approved by the defendant and paid in the Usual course of business.
There was evidence tending to show the following facts: In the
On October 15, 1897, Knapp addressed a letter to Commissioner Willis, stating that the twelve-inch water main on Neptune avenue, from West Twelfth to West Twentieth streets, was in a condition requiring immediate attention; that the earth covering had been reduced by various causes; that there was danger of injury to it by freezing or by fracture ; that the length to be filled in was about 1,600 feet, and that the work could be done at an expense not to exceed $1.35 per cubic yard. He recommended that bids be solicited and stated that it was a “matter of urgency.” It will be observed that the letter called for filling over the water main alone. This letter was approved in writing by Fielding, who on the same day also caused to be entered on the records of the department an order that the water purveyor solicit bids for the work of covering the water main on Neptune avenue, from West Twelfth to West Twentieth street, and not for any other filling. On October sixteenth Knapp wrote to Frazier, and on October eighteenth to Finkle and Haywood, asking proposals for the work, to be sent
The work of filling was proceeded with and thereafter. Finkle presented eleven bills for work done under this contract, that is, for furnishing and distributing earth over the water main, as shown on the following schedule:
The bills were similar to the one set out in (tlie indictment, and on each of them was a memorandum in red ink, put on in the purveyor’s office : “ From minutes, October 18, 1897.” The only entry on the record of that date, relating to the Finkle contract, is the approval of Finkle’s bid, already stated. The bills and indorsements are similar, except as to variances of amounts and dates. The following entries, indorsements or certificates also appear on each of the bills: an affidavit of Finkle, that it is correct; “ Examined by E. E.,” or in place of, and in several cases in addition to, the. last, “Examined by O'. K., F. Milne, Ass’t Eng.;” certificate of
The bills were sent to the auditor, who approved them in writing, and they were afterward audited by Sutton, as auditor, and paid by the city, the proceeds or some part of them coming into the possession of Doody, who testified that he paid Fielding ten per cent of the amount of each warrant, by opening the drawer of a desk in Fielding’s office, at which Fielding was sitting, and putting the money therein while they were conversing together, no one else being in the office. ' On cross-examination,' Doody stated that he paid to Fielding and others forty per cent of all moneys received on this and certain other former jobs. ■
There was no advertising for proposals, no consent by the mayor that proposals might be received without advertisement, no consent to award to other than the lowest bidder, and no written contract executed by the mayor and commissioner of city works and attested by the city clerk, as provided by section 1 of title 18 of the charter, above cited.
•Evidence was also given by the prosecution tending to show that the entire length of Neptune avenue, between Twelfth and Twentieth streets, was about 1,600 feet, and that it would require only 1,600 cubic yards of earth to make a bank 3 feet high and 9 feet wide, amply sufficient to cover the entire main, even if there had ■ been no previous covering or if the original covering had entirely disappeared; that the amount of earth named in the eleven bills was 16,702 cubic yards, which would be sufficient to make a bank 30 feet wide: 9 feet high and 1,60.0 feet long; that in April, 1896, the condition of the street was substantially the same as in December, 1897 ; that, while there were some broken places, five cubic yards would have been sufficient to cover all such places; that there were not, in April, 1898, 5,000 cubic yards in the whole embankment above the surface, including the water main and sewer and all earth which had been filled in the entire width of the avenue, either before 1896 or in 1896 and 1897; and that there was no tide wash or any considerable sinking of the filling below the natural surface of the meadow.
There was evidence on the part of the defendant that the amount
The court instructed the. jury, among other things, that the prose^ cut-ion was bound to prove that the claim'mentioned in the indictment was false or fraudulent, and also that the defendant knew it at the time he approved the bill, and that if there was failure on either proposition, the defendant was entitled to an acquittal.
The defendant’s counsel contends that section 165 of the Penal Code is “ highly penal in its character and must receive a very strict construction.” The learned counsel has evidently overlooked section 11 of the Penal Code, which says: “The rule.that a penal statute is to be strictly construed does- not apply, to this code or any of the provisions thereof, but all such provisions must be construed according to the fair import of their terms, to promote justice and effect the objects of the law.” 1 With this provision „ in mind, I proceed to examine'the arguments for reversal.
The first contention of the defendant’s counsel is that the case,, does not fall within the provisions of section 165 of the Penal Code, above cited, as Fielding had no official authority effectively to audit or allow the bill in question or take any part in doing so. The difficulty with this position is that it is based upon the first part of' section 165 and entirely ignores the other words, which cover the cáse of a “ public officer, or a person holding or discharging the duties of any office of place of trust,” who “ directly or indirectly consents to, or in any way connives at the auditing, allowance or payment of any claim against the * * * city * * * which is false or fraudulent, or contains charges, items or claims which are false or fraudulent. * * * ”
The auditor had no power to audit the bill unless it was “ certified by the head of the department or officer having cognizance of the subject of such' claim.” (Laws of 1888, chap. 583, tit-. 5, § 3.) This made it possible and justifiable for the auditor to take-into consideration the certification of a proper officer as one of the grounds for auditing and allowing a bill presented to him.
The indictment charges the defendant with having consented to-on connived at the auditing or allowance of the bill, and indorsed or signed 1ns approval-upon it, intending thereby to influence the auditor to audit the same. True it is that in the previous part of the indictment he was charged with taking part in the audit. It is-not even necessary for us in this connection to decide whether the-evidence is sufficient to convict the defendant of that crime. It is-sufficient that there was evidence which justified a conviction for directly or indirectly consenting to' or conniving at the auditing or allowing of a false or fraudulent claim against the city and approving such claim, or certifying to the bill, intending thereby to-influence the auditor to audit the same.
The counsel for the defendant also insists that “ the defendant-was neither the head of a department nor an officer having cognizance-of the subject of the claim in question.” It is not entirely clear that the words, “officer having cognizance,” refer at all to the-deputy commissioner of city works, although they seem broad enough to cover the case. The defendant was the deputy commissioner, with power, during the absence or inability of the commissioner, to transact any ordinary duties of the commissioner, subject to such restrictions or regulations as the commissioner might provide. He was also “ discharging the duties of any office or place of trust.” There was evidence tending to show that the commissioner was not absent from his office on December twenty-second, the day on which the bill was approved by the defendant, but the power of the defendant to act may rest upon the inability of the commissioner, or upon the general regulations of the department, or upon the fact-that the defendant was discharging the duties of the office.
Whether the defendant, as deputy commissioner, was, or was not,
In People v. Bowe (34 Hun, 528) there' was an indictment against the warden or keeper of the jail in the county of New York for perjury in making oath to an account or statement as to. the support of prisoners in the jail, upon which a payment was to be made by the county. The defense was made that the defendant had no legal authority to make the affidavit, but it was held that it was no defense for the defendant to show that he ivas not the proper person to verify the account so long as he did verify it. I think the analogy of this case and the one at bar is apparent. The defendant made a certificate of approval which was part of the proof upon which the auditor acted in auditing the bill, and the defendant cannot be heard to plead absence of authority, when, in pursuance of the regulations of the office or in the discharge of the duty of a place of trust, he approved the bill in question. The result of the defendant’s approval was calculated to be and was influential in the audit of the bill, and the jury were justified in finding that his approval was a consenting to or conniving at such audit, or that the defendant certified the bill, intending thereby to influence the audit.
The next contention of the defendant is that the evidence was not sufficient to establish that the bill in question was fraudulent, or that the defendant knew it to be so. This brings us to a consideration of the evidence on that subject. The defendant in November, 1896, as deputy commissioner of city works, executed a written contract with Doody, whereby the latter agreed “ to furnish and deliver all materials and furnish all appliances and labor, and to do everything necessary to fill around and cover over the twelve-inch (12 in.) water main on Neptune avenue, * * * as more particularly set forth in the following specifications which form part of this agreement, to wit: 1st. The work required is the covering of the exposed portions of the twelve-inch (12 in.) water main on Neptune avenue, from a point about two hundred (200) feet west of West 12th st., to the intersection of West 20th st., a
Let us assume, however, that under any circumstances - he. was justified in approving, in October, 1897, the bid of Doody for the re-covering of the main, or that by some sudden emergency he believed that it had become necessary to re-cover it. The indictment does not charge fraud in respect of the defendant’s approval ■of the first bill under the contract. But when the first bill, was presented- to the defendant for approval it contained the statement that it was' “for furnishing and distributing earth filling * * *
■over the water main, as per proposal, 1,528 cubic yards.” ■• This proposal was made in pursuance of a letter from Knapp, the water purveyor, which called for proposals “ for covering water main on Tíeptuné avenue, between West 12th and West 20th Sts.” The ■defendant knew or was bound to- know that, under the charter, he •could not enter into a contract which required the expenditure of more than $2,000, without advertising forbids or obtaining the consent of the mayor therefor. He assumed to act under the. emergency provision of the charter in approving the proposal of Tinkle-. If such action had ended the transaction it Would have been possible to believe that he had simply been over-anxious under the menace of some sudden injuiy to the main arising from its exposed1 condiv tion, but we find that .after the bill for this work.was approved by
“ A defendant in a criminal action is presumed to be innocent until the contrary be proved ” (Code Grim. Proc. § 389), but it would tax the imagination of the most credulous person in the world to believe that the defendant did not know that fraud was stalking rampant through his department when, in close proximity, repeated bills, calling for nearly ten times the amount of work and compensation-named in the original proposal, were presented to, and approved by, him within a period of fifty-two days, and in some instances two of them on the same day. The defendant must have known that he was repeating certification of bills for the identical work which he had already certified, and especially is this true of the work for which the last bill was certified. Certainly, this is true as to the tenth bill, which he approved on the same day that he approved the eleventh, and still more is it evident as to the eleventh. • The whole scheme' was a manifest and repeated evasion of the $2,000 limitation of the charter, and it is very clear that upon the evidence the jury were justified in finding that the bill was fraudulent and that the defendant had such guilty knowledge as to the fraudulent character of the bill set out in the indictment as is essential to his conviction.
After a careful reading of the evidence, even excluding the testimony of Daniel Doody, it is impossible to reach any other conclusion than that the defendant formed a deliberate scheme to evade
It was. also proper for the . court to admit evidence of all the defendant’s transactions in certifying the. ten bills which preceded the certification of the bill of December twenty-second, in order to show the knowledge of the defendant that numerous bills for work, which had been.actually or properly done upon the main, had been already certified by him for the purpose of having the same audited in the regular course of business.
The defendant’s counsel urges with great earnestness that it was error to admit the testimony of Mr. Sutton, the auditor, that he made no other investigation than an examination of the bill itself. This is based upon a question addressed to Sutton : “ Q. In auditing this bill, did you make, any other investigation than the inspection of the bill itself as it came to you ? [Objected to as immaterial, irrelevant and incompetent, on the ground that what he did that was not with defendant’s knowledge or at defendant’s direction, and which intervened 'after we had performed our services with regard to the bill, could not. retroact so as to affect the character of our act in hav- ■ ing approved this bill.] ” After some inquiries by the court, the witness answered: “T audited this bill in good faith. In the honest, discharge of my duty, believing that it was a proper claim against, the city to be allowed. I exercised my judgment on it; it -was my duty to do so; I know from the face of the bill itself that it was-incurred under the .authority of an entry on the minutes of the City Works Department. From the minutes of October 18th, 1897, I knew that no written contract had been entered into for that work.. I knew that no written contract had, been filed in the Comptroller’s-office and certified by the Comptroller. It was the practice of the Department of City Works to certify these bills for less than $2,000 where no written contract had, been entered into.”
Another exception to the admission of evidence requires consideration. This relates to evidence of- the receipt of money by Doody from the city, both upon the Finkle bills and other bills on previous-jobs. Doody testified that he paid the defendant ten per cent of the-amount received by him on previous work, and had said to him that “ the same arrangement would go along as we had been doing,, the same arrangement would be carried out.” He testified, without: objection, that he had paid Fielding ten per cent of the amount received by him from the city on a previous job, for New Utrecht avenue. When the prosecution attempted to prove a similar state of facts on another previous'job, for Wartman avenue, the defendant’s counsel objected. We do not see, however, that the admission of the evidence as to Wartman avenue, or as to the Finkle bills, could-materially injure the defendant, as one similar instance had already been proved without exception.
We must not lose sight of the fact that Doody was particeps criminis and that his testimony was open to suspicion, and the jury might believe or disregard it altogether. There were some circumstances as to which he testified which were subject to contradiction, if untruly stated, but they were not denied. Doody testifies : “ On. each warrant I paid the sum of ten per cent to Mr. Fielding; it might -be a little over. * * * I could not -name the specifie sum in each case ; never gave any odd cents, always even money. * * * I did the paying myself in Fielding’s office, in cash; * * * I mean in bills. The payments were made by opening the desk that was right in front — a roll top desk, opening the drawer of the desk and putting it in the drawer, right in front of him, directly in front. He was at the time sitting down alongside the desk. The drawer was not open. I opened it and put the money
■ There can be no question that Doody, on his own-, evidence, was a party principal in the crime with which the defendant was charged. Section 29 of the Penal Code reads : “ A person concerned in the commission of a crime, whether he directly commits the act constituting the offense, or aids and abets in its commission, and whether present or absent, and a person who directly or indirectly counsels, commands, induces or procures another to commit a crime, is a principal.”
Section 399 of the Code of Criminal Procedure reads: “ A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.”
It was, therefore, material and proper to corroborate the testimony of Doody by showing that he actually had money, and that in bills, to make the payment to Fielding in the method in which he stated. Under these circumstances I think the admission of the testimony as to the receipt of money from the city by Doody worked no in jury to the defendant and is not reversible error.
The record contains ample evidence that the defendant, with Daniel Doody, concocted and carried out a brazen scheme to defra.ud the city; that he was cognizant of all that was being done in pursuance of the plan ; that he assisted it in all its stages; that .for his own benefit and profit he basely betrayed the public trust reposed in him! And his conviction is a righteous retribution and a vindication of our judicial system for the discovery and punishment of unfaithful officials.
"We find nothing in the record to justify the charge that the district attorney exceeded his duty, either in his opening or his closing address to the jury. Impartially, both to the People and to the defendant, he presented to the jury the facts shown by the evidence. His conduct not only calls for no disapproval from this court, but meets xxdth our cordial approbation.
The judgment and conviction must be affirmed.
All concurred in result.
Judgment affirmed.